Prof. Garnett Endorses Second Amendment Interpretation by Court

June 26, 2008

“The Second Amendment is one of the better known, but more mysterious, provisions of our Constitution,” Professor Richard Garnett observed. “Until today, the Supreme Court had not squarely examined its meaning in nearly 70 years.”

The Court’s decision in District of Columbia v. Heller involves the constitutionality of a 1976 Washington D.C. law banning all handgun possession in the District. Today, in an opinion written by Justice Antonin Scalia, the Justices, by a 5-4 vote, ruled that the blanket ban violates the Second Amendment which, the Court affirmed, protects an individual right, and not simply a “collective” right, to own firearms.

Professor Garnett commented that “today’s decision is fascinating, and noteworthy, because it provides an example of how citizens-group activism and scholarly research can push the Court to revisit and reexamine its own premises. For decades, the courts assumed – somewhat uncritically – that the Second Amendment did not protect an individual right. But careful historical research, by scholars situated across the political spectrum, challenged this assumption. Among constitutional-law experts, ‘liberals’ and ‘conservatives’ alike have come to agree that the Second Amendment was understood to protect not only the rights of state governments and militias, but also the self-defense and liberty rights of individual citizens. Today, the Supreme Court endorsed this widespread understanding.”

“Of course,” Garnett continued, “few constitutional rights are absolute, and the right secured by the Second Amendment isn’t, either. Justice Scalia made it clear that today’s decision does not mean that all gun-control laws are unconstitutional, or that all gun-related crimes are invalid. Far from it. The individual right at issue, as the Justices understand it, is subject to reasonable regulation. Still, with today’s decision, the Second Amendment has been brought into the family of individual freedoms – along with the freedoms of speech and religion, the right to a jury trial, and so on – that the Bill of Rights protects against excessive government burdens.”